Kitchen v. Hartford Fire Ins. Co.

• Decision Date: 03 June 1885
• Citation: 23 N.W. 616,57 Mich. 135
• Court: Michigan Supreme Court
• Parties: KITCHEN v. HARTFORD FIRE INS. CO.

23 N.W. 616

57 Mich. 135

KITCHEN v. HARTFORD FIRE INS. CO.

Supreme Court of Michigan

June 3, 1885

Error to Shiawassee.

James M. Goodell, for plaintiff.

M.V. &amp R.A. Montgomery, for defendant and appellant.

CHAMPLIN, J.

This is an action brought by the plaintiff to recover from the defendant the amount claimed to be due upon a policy of insurance. The policy in question was issued at the company's agency in Chicago, and is there countersigned as of date of January 12, 1883. The risk was to commence on that day at noon and extend to January 12, 1884, at noon. The policy was issued upon a written application signed by the assured, which was made a condition of the insurance, a part of the contract, and a warranty on the part of the assured. The property insured consisted of a store building, valued at $1,200, and insured for $800, and a stock of goods contained in the store building, valued at $5,000, and insured for $1,500, located at Bancroft, Shiawassee county, Michigan. The application for insurance was made to F.M. Douglas, who was an agent of defendant residing at Bancroft, and duly authorized to solicit and forward application for insurance deliver policies and renewals to applicants, and collect and forward premiums on same; subject to a book of instructions furnished him and made a part of his authority and also to such rules and instructions as he might receive from time to time from the Chicago office. The book of instruction and rules and instructions were not given in evidence. The company employs two kinds of agents,--one called a surveyor, to which class Douglas belonged. These agents were not intrusted with blank policies, and had no authority to fill out policies or make indorsements thereon. The other kind are styled recording agents, who are intrusted with the custody of policies, and have authority to fill out and deliver them, as well as to make indorsements thereon.

The application signed by plaintiff was dated January 11th. In it nothing is said about the effect upon the policy to be issued thereunder in case other insurance is effected upon the property insured without the consent of the company. The only reference to other insurance are the following questions "What other insurance on property; in what company, and rate?" To which there is no answer. "What rate has been paid?" Answer. "2." "Has risk been declined by any company?" A. "No." Mr. Douglas was postmaster at Bancroft, and taking this application from Mr. Kitchen, forwarded it to the company, delivered the policy, and collected the premium. This single case is all the insurance business he ever did. The policy contains the following clause: "If an application, survey, plan, or description of the property herein insured is referred to in this policy, such application, survey, plan, or description shall be considered a part of this policy, and a warranty by the assured; and if the assured, in written or verbal application, makes any erroneous representation, or omits to make known any fact pertaining to the risk; or if there shall be any other insurance, whether valid or otherwise, on the property insured, or any part thereof, at the time this policy is issued, or at any time during its continuance without the consent of this company written hereon,--*** this policy shall be void."

When Mr. Kitchen made the application to Mr. Douglas for the insurance, he informed him that he should take out other insurance upon his stock with Mr. Simonson, another insurance agent at Bancroft, who was then absent, as soon as he returned home. Mr. Douglas says he told Mr. Kitchen it would not be necessary to mention it in the application, but when he got his policy from Mr. Simonson he would have to get permission from the Hartford. After he received the Hartford policy, and within two or three days, he took in the policy of the Sun Insurance Company, represented by Mr. Simonson, and Mr. Kitchen testifies that he at once informed Mr. Douglas, and requested him to notify his company of such additional insurance.

The store and contents burned September 3, 1883, and were totally lost. October 8, 1883, proofs of loss were made, and forwarded to the company's agency at Chicago on October 16th, and soon after he received the following reply: "CHICAGO, October 19, 1883.

"Elijah D. Kitchen, Esq., Bancroft, Michigan--DEAR SIR: We are in receipt of yours of the sixteenth inst., inclosing proofs of loss under policy No. 38,034, of the Hartford Fire Insurance Company, of Hartford, Connecticut, issued at its general agency at Chicago, Illinois, insuring eight hundred dollars on building, and fifteen hundred dollars on stock of merchandise therein, property belonging to you, and located at Bancroft, Michigan. Upon examination of such proofs of loss, we learn that there was twenty-five hundred dollars other insurance upon the stock insured in said Hartford policy, which, by its terms, is void by reason of such other insurance, without notice to this company, and its consent written thereon. We refer you to the conditions of your said Hartford policy, and hereby notify you that this company denies any and all liability under said policy number 38,034, by reason of the other insurance as aforesaid, without notice and the consent of this company written thereon. Accompanying said proofs are duplicate bills of purchase which we hold subject to your order, in case you desire to use them elsewhere.

"Yours very truly, W.H. TAYLOR, 2d Assistant G.A."

The plaintiff contends that his case comes within, and is ruled by, Westchester F. Ins. Co. v. Earle, 33 Mich. 143. On the other hand, the defendant claims that the case is ruled by the principles laid down in New York Cent. Ins. Co. v. Watson, 23 Mich. 486. Both of those cases turned upon the effect to be given to the clause in the policy which rendered it void in case any other insurance had been or should be made upon the property, and not consented to in writing by the company; and also whether, under the circumstances of each case, there had been a waiver of the condition or an estoppel by acts in pais by the company. In the Watson Case additional insurance had been taken out, and the company had never consented in writing. The trial judge left it to the jury to determine whether or not there had been any waiver of this condition or of the forfeiture under it. This court held that there was nothing to authorize this question to be submitted to the jury; that under the decisions of Western Ins. Co. v. Riker, 10 Mich. 279, and Security Ins. Co. v. Fay, 22 Mich. 467, the policy became absolutely void at once upon the obtaining the last insurance without consent; that nothing could revive them short of a new contract on valid consideration, or such conduct as, by misleading the insured to their prejudice, would operate as an estoppel. And, speaking of the case before it, the chief justice who delivered the opinion said: "There is no item of testimony tending, in the remotest degree, to show that any such contract was made, or that the insured did anything by the encouragement of the plaintiff in error, or their lawful agents, to their own prejudice, or anything which they would not have done under other circumstances. There is no evidence that the insurers knew anything about it. But mere knowledge of it, without some other act knowingly done to the prejudice of the insured, would not amount to anything more than knowledge that the latter had seen fit to terminate the policies."

This case was followed by Allemania F. Ins. Co. v. Hurd, 37 Mich. 11, where a similar clause was under consideration, and there it was not claimed that the company ever consented to the additional insurance, or had any notice thereof, except as appeared from a letter, written by the agents of the company to the insured in reply to one received by them, as follows:

"GENTLEMEN: Your favor of the thirtieth inst. at hand, and noted. We will, of course, allow other concurrent insurance with the Allemania

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